Defending a Foreclosure Lawsuit, Years After the Fact

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Defending a Foreclosure Lawsuit, Years After the Fact

Posted on November 11, 2011 by Mark Stopa
http://www.4dca.org/opinions/Nov%202011/11-09-11/4D10-3538.op.pdf

Florida’s Fourth District Court of Appeal issued an opinion this week which bears discussion. In the case of Woodrum v. Wells Fargo Mortgage Bank, the Fourth District reversed a trial court order granting a Final Judgment of Foreclosure because the bank did not disprove the homeowner’s affirmative defenses. That’s not a new principle of law; we should all know at this point that the bank must disprove affirmative defenses to prevail at summary judgment.

What interested me about this case was the bank’s argument that the homeowner was prohibited from raising these defenses because the homeowner did not file its Answer, containing such defenses, in a timely manner. The Fourth District appropriately rejected this argument, citing Fla.R.Civ.P. 1.500(c), ruling:

[A] party may plead or defend at any time before a default is entered.

This language takes me back to a foreclosure case I handled just recently. The homeowner had been trying to defend the case pro se since 2008. It was set for trial in October, 2011 and the homeowner realized he was in over his head, so he came to me. In that sort of situation, the first thing I look for is to see whether the homeowner had been defaulted. In that case, he had not. I then checked to see if he had filed an Answer (with affirmative defenses). He had not. As a result, I knew I could file an Answer, with defenses, even though trial was just a few weeks away and even though the Answer was more than two years late.

That’s worth clarifying:

The homeowner’s Answer to the Complaint, with affirmative defenses, was more than two years late but I still filed it.

Not only was this totally permissible, but the judge agreed with my subsequent argument that the trial had been set prematurely because the case was not at issue. See Fla.R.Civ.P. 1.440. Hence, not only did I file an Answer, but the trial was continued.

How can this happen? It’s a matter of procedure. As the Fourth District explained in Woodrum, when the defendant has not been defaulted, he may defend the case at any time, even years later. The Answer must be filed before Final Judgment is entered, of course, but without a default, and without a Final Judgment, an Answer can be filed at any time.

This dynamic happens quite often in foreclosure cases. Hence, for the countless pro se homeowners who have not been defending their foreclosure cases, please realize – it’s probably not too late. If a default has not been entered, you can hire an attorney and file an Answer and Affirmative Defenses, even if the case has been pending for many years. And even if you’ve been defaulted, there are a variety of circumstances where such a default can be vacated.

Don’t walk away, and don’t give up! You have rights, you just have to exercise them.
Mark Stopa Esq.

http://www.stayinmyhome.com

8 Responses

  1. Anonymous, have you put yourself in the shoes of somebody actually considering BK?

    I have, as I am there. Let me tell you it ain’t the end all like you thing. the rules have been changed.

    Actual BK laws now are true liquidation of everything you own to pay off pretender lenders………………..

    you have to understand that……………..

    And I suggest you go thru the motions of pretending you are bankrupt and fill out the forms on Nolo dot com to see if you can file for Ch 7 or Ch 13…………….

    believe me, if you do this, you will have a new light bulb turn on………..

    And I mean really look at the forms reguired to file BK and do it, plug in your numbers and see which BK chapter you are required to do………..

  2. Marie

    Believe Ann is right.

  3. […] trial was just a few weeks away and even though the Answer was more than two years late.Source: wordpress.com Tags: Attorney, bankruptcy lawyers in michigan, contract clauses, fee, financial services […]

  4. WEDNESDAY, NOVEMBER 16, 2011

    KingCast, Mortgage Movies, Occupy Wall Street, Union Federal and Anchor Bank Foreclosure Fraud and my chat with a one percenter.

    Note: I have spoken with the Landlord and he is forgiving the tenant, perhaps I can interview her about how Union Federal tricked her and how scared she was and that is why she paid them rent even though they had no receivership hearing.

    http://mortgagemovies.blogspot.com/2011/11/kingcast-mortgage-movies-occupy-wall.html

  5. Marie,
    I believe that if you file Bankruptcy, the BK would stop the sale of the property and you can continue to fight the foreclosure in BK Court. Check this option with a BK lawyer.

  6. In a nonjudicial state those “rights” are theoretical, at best. My “default, acceleration and foreclosure” were accomplished by the banksters in 2 weeks, thanks to The “rights” afforded me in my state.

  7. […] Read More: Defending a Foreclosure Lawsuit, Years After the Fact […]

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